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Courts straining to balance public health with public access

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After her son was arrested for allegedly throwing rocks at police during a protest over racial injustice, Tanisha Brown headed to the courthouse in her California hometown to watch her son’s arraignment.

She was turned away, told the courthouse was closed to the public because of coronavirus precautions. A day later, the Kern County Superior Court in Bakersfield posted a notice on its website explaining how the public could request special permission from judicial officers to attend court proceedings.

But problems with public access have persisted, according to a federal lawsuit filed Friday on behalf of Brown and several others who have been unable to watch court sessions.

The situation in Kern County highlights the challenges courts across the U.S. are facing as they try to balance public health protections with public access to their proceedings amid the COVID-19 outbreak.

The U.S. Constitution guarantees the right to a public trial, but some courts have held arraignments and other pretrial hearings without the public watching or listening. In some cases, the public had no means of participating. In other cases, the defendant’s family members, friends or other interested residents weren’t aware how to gain access to special video feeds.

“The courtrooms are supposed to be fully public, anybody who’s interested is supposed to be able to watch, and they have not been doing that,” said Sergio De La Pava, legal director of New York County Defender Services, a nonprofit public defenders office in Manhattan.

In California, a coalition of civil liberties and open-government organizations sent a letter this month to the state’s chief justice documenting numerous instances in multiple courts where the public was shut out of proceedings, including the one involving Brown’s son on June 10.

“We’ve found widespread instances, to put it most bluntly, of court secrecy,” said David Snyder, executive director of the First Amendment Coalition, based in the San Francisco Bay area.

Brown said she was surprised to be turned away when her 24-year-old-son, Avion Hunter, was arraigned on a felony charge of assaulting a police officer and misdemeanors of rioting, unlawful assembly and resisting arrest during a June 1 protest over the death of George Floyd at the hands of Minneapolis police.

“I can understand you don’t want a lot of people in,” Brown told The Associated Press. “But why couldn’t I go in, just one person, as his mom?”

Members of two media outlets were allowed in to the courtroom for Hunter’s arraignment because they filled out requests, said Kern County Superior Court spokeswoman Kristin Davis.

When cases of COVID-19 started mounting in March, many courts shut down because of concerns about staff, attorneys, defendants, jurors, witnesses, media and members of the public all crowding together in courtrooms. Many courts later began conducting some proceedings remotely, using video feeds of defendants from jail and attorneys from their homes or offices.

It’s unclear exactly how many people have been denied the ability to observe court proceedings, because it’s difficult to track the thousands of local courts across the U.S., said Bill Raftery, a senior analyst at the National Center for State Courts.

“Has it happened? Yes,” Raftery said. But he said court officials are trying to balance “the idea that the courts have to be open as much as possible consistent with not spreading a mass contagion.”

In Chicago’s home of Cook County, Illinois, the circuit court includes a link on its website to a YouTube channel allowing anyone to watch its proceedings. The video feed includes a warning that people recording or photographing the live-streamed sessions could be penalized for contempt of court.

The remote hearings generally seem to be working. But volunteer court observers experienced some technical difficulties during a coordinated initiative to monitor proceedings last month, said Sharlyn Grace, executive director of the Chicago Community Bond Fund, a nonprofit group involved in the monitoring project.

Remote court proceedings also have been used in civil cases in some states, with mixed results.

The Missouri Supreme Court has offered an audio livestream of its remote proceedings while excluding the public, the attorneys and most of the judges from its courtroom. But the livestream failed during a June 15 hearing on a challenge to the state’s absentee voting requirements to be used during the coronavirus outbreak. The court posted an audio recording online about an hour later.

Some courts, like those in New York City, have declined to post live video feeds on their websites. Instead, as they gradually ramp up proceedings, the city’s courts are allowing a limited number of people to enter courtrooms where they can listen to audio of remote hearings or get a one-time video link to watch on their personal computers or smartphones, said Regan Williams, senior clerk in Manhattan’s criminal court.

New York’s arrangement “may in fact be reasonable under the circumstances” as a way of ensuring that the defendants’ interests aren’t harmed by people recording the hearings, said Douglas Keith, a counsel at the Brennan Center for Justice’s Democracy Program at New York University Law School.

But holding hearings in which the judge, defendant, attorneys and the public are in separate places can weaken judicial accountability, he said. When people are present in a courtroom, judges and attorneys may be more aware of “the sheer weight of their responsibility,” Keith said.

In New Orleans, another city that was hit hard by the coronavirus, courts that had been shuttered to the public began holding Zoom proceedings in June.

The court’s website directed the public to contact a judge’s office to get the access code to watch particular proceedings. But few people actually have done so, said Chief Judge Karen Herman of the Orleans Parish Criminal District Court.

Herman said the courts plan to reopen to the public on July 6, with limited seating because of social distancing. Her courtroom will have a capacity of just 14 people, with half the spots filled by court personnel, attorneys and the defendant.

Although onlookers could attempt to attend court in person, “we’re going to ask members of the public to call in and view from Zoom if they wish,” Herman said.

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Follow David A. Lieb on Twitter @DavidALieb

By DAVID A. LIEB
Associated Press

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